Cox v R; Dillas v R

• Jurisdiction: Bermuda
• Judgment Date: 14 November 2008
• Date: 14 November 2008
• Docket Number: Criminal Appeal 2007 No. 22 & 2008 No. 6
• Court: Court of Appeal (Bermuda)

In The Court of Appeal for Bermuda

Before: Zacca, P; Nazareth, JA; Evans, JA

Criminal Appeal 2007 No. 22 & 2008 No. 6

BETWEEN:

DAVID JAHWELL COX

AND

JAHKI DILLAS

Appellants

and

THE QUEEN

Respondent

Mr J Perry, QC for the Appellant Cox

Ms C Clarke for the Respondent

The following cases were referred to in the judgment:

R v Stauffer [2007] BC CA 7

R v Wust (2000) 143 CCC (3d) 129

Hinds v R UNK [1976] 1 All ER 353

Bowe and Davis v R UNK [2006] UKPC 10

R v Johnson BDLR [2004] Bda LR 63

Anderson v Secretary of State for the Home Office UNK [2003] 1 Cr App R 32

Whether minimum sentence provisions are unconstitutional - Possession of knife (bladed weapon; machete) - Appeal against conviction and sentence - Proportionate sentence

JUDGMENT of ZACCA, P

1. These two appeals raised an important issue of law - whether the minimum sentence provisions for the criminal offence of having a knife ("any article which has a blade or is sharply pointed, except a folding pocketknife") in a public place are unconstitutional and should be declared void or otherwise held to be of no effect. The two appeals therefore were heard at the same time, with the agreement of all parties.

2. The minimum sentence provisions were introduced in 2005 when the Criminal Code Act 1907 ("the Act") was amended to include section 315C. Sub-section (6) reads as follows -

"(6) A court which finds a person guilty of an offence under subsection (1) shall -

(a) on summary conviction, impose a term of imprisonment of not less than three years and not more than five years, and may in addition to the prison sentence, impose a fine of $5,000;

(b) on conviction on indictment, impose a term of imprisonment of not less than five years and not more than seven years and may in addition to the prison sentence, impose a fine of $10,000."

3. David Jahwell Cox was convicted of one charge under section 315C of the Act in the Magistrates' Court (Worshipful Shade Subair, Acting Magistrate) on 27 October 2006 and he was sentenced to three years imprisonment for that offence. His appeal to the Supreme Court against both conviction and sentence was dismissed by the learned Chief Justice by a reserved judgment dated 19 October 2007. He now appeals against conviction and sentence to this Court.

4. Jahki Dillas pleaded guilty before the Supreme Court on 26 November 2007 to three offences, which were (Count One) Affray, (Count Two) Attempted Wounding with Intent, and (Count Three) possession of a bladed or pointed article in a public place, contrary to section 315C (1) of the Act. On 6 March 2008 before Her Honour Justice C. Simmons he was sentenced to five years` imprisonment for the section 315C offence. He now appeals against that sentence to this Court.

5. In both cases, the "bladed or pointed article" was a machete. The individual facts of the two cases are not relevant to the issue of law which we have outlined above, and we will consider that issue first.

Minimum sentence provisions - section 315C(6)

6. Mr. John Perry QC submitted on behalf of the appellant Cox that the minimum sentence provided for by section 315C(6) is unconstitutional and should be declared void. Alternatively, the section is inconsistent with the provisions regarding "Purpose and principles of sentencing" given statutory effect in Part IV of the Criminal Code Act 1907 as amended in 2001. Specifically, section 54 (as amended) reads as follows -

"Fundamental principle

54. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

7. Reference was also made to sections 53 ("The fundamental purpose of sentencing…") and to section 55(2), which lists the circumstances to which the court shall have regard before imposing a sentence of imprisonment.

8. The minimum sentence provisions have Canadian origins, and Miss Clarke in her written submissions for the Respondent DPP referred extensively to Canadian authorities where the constitutionality of corresponding sentencing provisions has been challenged. She contended that the minimum periods prescribed by section 315C(6) could not be regarded as "constitutionally suspect", in the light of those authorities. But she also submitted that "mandatory minimum sentences should not vitiate the other substantive principles of sentencing and must be understood in the full context of our sentencing regime". That submission was prescient, because when Mr. Perry relied upon section 54 in support of his alternative argument (that section 54 requires the Court to consider whether the sentence is proportionate, even when a minimum sentence is required by section 315C(6)), Miss Clarke accepted that that argument is correct. She conceded that if the minimum sentence requirement was not subject to that overriding requirement, and was required regardless of the circumstances of the offence and of the offender, then it could be regarded as unconstitutional, and she would not seek to defend it from that charge.

9. Mr. Perry, whilst welcoming this concession, maintained his primary submission, that the provision is contrary to the fundamental rights and freedoms of the individual preserved by the Bermuda Constitution Order 1968, and specifically is in breach of section 3, which provides -

"Protection from inhuman treatment

3. (1) No person shall be subjected to torture or to inhuman or degrading treatment or punishment."

10. The issues for the Court, therefore, are to determine, first, whether Mr. Perry's alternative submission, supported by Miss Clarke, is correct, namely, whether the mandatory minimum sentence provisions of section 315C(6) are subject to the fundamental principle...